Archive for March, 2005

Some time ago I talked about "the future of DUI", trying to identify trends of the past and project into the future on such issues as probable laws, blood alcohol evidence, constititional rights, the growing federal presence — and the movement toward a "New Prohibition". Although I predicted that MADD's agenda of resurrecting that failed experiment would eventually fail, I was thinking of a frontal attack — that is, an amendment to the Constitution as happened before. I recently received the following insightful comments concerning that post from a good friend and one of the top half-dozen DUI attorneys in the country today, Troy McKinney of Houston:

If there is one thing that our country's politicians have learned it is that is far easier to make small incremental changes through economically motivated laws than through unfunded mandates or constitutional amendments. Over time, these small changes significantly change the landscape.

Thus, I see there being a New Prohibition, but only a statutory one that originates at the federal level. I think it is likely that the feds will impose new, increasingly onerous requirements as conditions for federal dollars — to the extent that we will have a federally imposed statutory prohibition on alcohol.

I think the future of this federal prohibition will include, within the next 20 years, all new cars being manditorily equipped with ignition interlock devices — and ones much more sophisticated and onerous than those used today — perhaps even to the extent that a positive blow will itself be a crime that is remotely reported to law enforcement at the time of the positive blow along with a continuous GPS signal for location purposes.

I can envision passive alcohol sensors in vehicles that continually sample the ambient air. Once an ignition interlock company merges with an OnStar, the stage will be set. With 16-18 million new cars a year cranked out in this country, it offers these companies a HUGE market opportunity.

I doubt that I am the first to envision the long term possibilities and it would not surprise me if some of these companies already had plans like this on the drawing board. These companies are already very active on the legislative and regulatory front and it will only increase, dramatically so in my view.

A true zero tolerance drinking and driving society will markedly affect the sale of any alcoholic beverage as well as the sale of packaged alcohol for anything but personal consumption in one's own home. This will in turn lead to an effective, although not absolute, Prohibition.

Orwell had it mostly right, he was just a bit early in his predictions.

As with so many glacial shifts in history, we are seeing no revolution, no sudden dismemberment of the Constitution, but rather something like the old Chinese torture, "the death of a thousand cuts".

Individuals convicted of DUI are often required to have an ignition interlock device installed (at their expense) in their cars. These notoriously inaccurate and unreliable gizmos are designed to prevent the ignition from working until after the driver has breathed into a mouthpiece and registered alcohol-free (although it takes little imagination to realize that a drunk driver can start the car by simply having his passenger breathe into the device).

This latest weapon in the “war on drunk driving” has been adopted in many states with the strong lobbying of MADD — and of manufacturers who make a huge profit on the devices. Consider a story in today’s (March 16, 2005) Arizona Republic:

First-time DUI offenders could agree to equip their vehicles with an ignition interlock device to prevent drunken driving rather than face suspended driver’s licenses under a bill that breezed through the Senate on Tuesday….. Alberto Gutier, a former highway safety director lobbying for the Arizona Interlock Distributors Association, said increased sales isn’t the bill’s purpose. “It’s not about expanding the market, it’s about preventing drunk driving,” Gutier said.

The bottom line, of course, is: Do IIDs prevent drunk driving? Do they make our streets safer? MADD claims that their “research” shows they do:

Interlocks have been shown to be effective in Maryland, Alberta, California and elsewhere with results ranging from 50 to 90 percent reductions in subsequent offenses by those offenders who were assigned interlock devices, compared with those who were not…..While interlocks are not the only solution, as offenders tend to go back to their old ways once the device is off of the vehicle, they certainly keep the roads safer while these devices are in place.

Effective in California? Keep the roads safer? The California Department of Motor Vehicles has just released a study entitled An Evaluation of the Effectiveness of Ignition Interlock in California: Report to the Legislature of the State of California. Among their conclusions:

The expected effect that an IID order/restriction issued by the court would result in a lower rate of subsequent DUI convictions was not observed. (p. 7) The risk of a subsequent crash was higher for drivers installing an IID, compared to drivers not installing a device; drivers installing an IID had a risk of a subsequent crash that was 84% higher than drivers not installing an IID. (p. 10) The results of this outcome study clearly show that IIDs are not effective in reducing DUI convictions or incidents for first DUI offenders … Because there is no evidence that interlocks are an effective traffic safety measure for first DUI offenders, the use of the devices should not be emphasized. (p. 22)

In the previous post I talked about the dangers of ignoring the erosion of constitutional rights in DUI cases. I ended by paraphrasing a vaguely remembered quote from the past, "First they came for the drunks, but I was not a drunk so I did not speak up…". After receiving a surprising number of inquiries concerning the actual quote, I was able to locate it:

First they came for the communists, and I did not speak out– because I was not a communist;

Then they came for the socialists, and I did not speak out– because I was not a socialist;

Then they came for the trade unionists, and I did not speak out– because I was not a trade unionist;

Then they came for the Jews, and I did not speak out– because I was not a Jew;

Then they came for me– and there was no one left to speak out for me. -Pastor Martin Niemöller, Germany, 1945

As discussed in previous posts, forensic alcohol analysis (the measurement of blood alcohol levels for use as evidence) is based upon the premise that the subject is an "average person" — a premise that simply does not exist in the vast majority of cases. An example of this is the individual who has a higher percentage of body fat than normal. Alcohol is distributed throughout the body according to the water content of blood and tissues. It is not, however, soluble in fat. Thus, if the tested subject has a high percentage of fatty tissue in his body, there will be a lower "volume of distribution" — that is, a smaller percentage of body mass absorbing the alcohol. See Hawkins and Kalant, "The Metabolism of Ethanol and Its Metabolic Effects", 24 Pharmacological Review 67 (1972).

So what does all of this mean in a DUI case? Well, it is not illegal to have a blood alcohol concentration (BAC) of .08% or higher at the police station where the breath test takes place — only at the time of driving. Therefore, it often becomes necessary to estimate the earlier BAC based upon known factors (weight, sex) and assumed factors (rates of absorption and elimination of alcohol in the fictional "average person"); this process is called retrograde extrapolation.

The formula used for this process of estimating blood alcohol levels in the "average person" is called the Widmark factor. However, although the formula takes into account body weight, it does not consider what percentage of that weight is fatty tissue; it simply assumes that it falls within a relatively normal range (called a "body mass index"). Since the formula varies inversely with the volume of distribution, the elimination of alcohol from the body will be quicker in a fat person — thus further skewing an already inaccurate attempt at guessing what the suspect’s BAC was when at the wheel. Woman, parenthetically, will usually experience a faster rate of elimination since the "average woman" has a higher percentage of body fat than the "average man".

Some time ago I commented on the increasingly rough tactics used by police to incapacitate a nonconsenting DUI suspect while a nurse or blood technician draws a blood sample. More recently, I discussed the approach now being used in Utah: doing away with the doctor, nurse or medical technician and simply letting the officer stick a needle into the suspect himself out on the highway. (It takes little imagination to envision the scene: the struggling suspect thrown across the dirty hood of his car, his hands cuffed behind his back, the officer with a baton in one hand and a hypodermic needle in the other….)

I’ve received a number of inquiries from attorneys concerning that post, advising me that their own states are now planning to emulate Utah’s new cost-effective approach and asking for any ideas on how to challenge it. Frankly, I would much rather cross-examine a cop on the witness stand about his medical training, experience and technique than I would a doctor, nurse or medical tech. But it should never get that far……

In 1966, the United States Supreme Court in Schmerber v. California was confronted with the issue of whether drawing blood from a DUI suspect over his objection constituted a violation of the Fourth Amendment. In that case, the suspect had been taken to a hospital for a blood draw; the suspect refused to consent to the test, but did not resist as a physician withdrew a sample. The Court affirmed the conviction, holding that a nonconsensual draw without a warrant was constitutionally permissible under the circumstances. But in doing so, the Court clearly distinguished the circumstances which made it permissible:

…Finally, the record shows that the test was performed in a reasonable manner. Petitioner’s blood was taken by a physician in a hospital environment according to accepted medical practices. We are thus not presented with the serious questions which would arise if a search involving use of a medical technique, even of the most rudimentary sort, were made by other than medical personnel or in other than a medical environment ‘ for example, if it were administered by police in the privacy of the stationhouse. To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection and pain….

The Court ended its opinion with the following admonition:

We thus conclude that the present record shows no violation of petitioner’s right under the Fourth and Fourteenth Amendments to be free of unreasonable searches and seizures. It bears repeating, however, that we reach this judgment only on the facts of the present record. The integrity of an individual’s person is a cherished value of our society. That we today hold that the Constitution does not forbid the States minor intrusions into an individual’s body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions. 348 U.S. 771